OHIO APPELLATE COURT AFFIRMS DISMISSAL OF TORT COMPLAINT BASED ON UNTIMELINESS OF THIRD FILING UNDER SAVING STATUTE

Earlier this month Ohio’s Court of Appeals, Eighth District, affirmed the dismissal of a tort action filed by Rector against Dorsey due to injuries Rector suffered on February 8, 2016 from a car accident allegedly caused by Dorsey. Rector v. Dorsey, 8^th Dist. No. 109835, 2021-Ohio-2675. Within a year of the car accident, Rector sued Dorsey, but then dismissed and refiled the same action a day before the 2-year statute of limitations had run.ⁱ On April 9, 2019 the court dismissed Rector’s second action (without prejudice) based on discovery violations. About four months later Rector filed the same action against Dorsey for the third time.

Dorsey moved for summary judgment against Rector claiming the third action was filed after expiration of the 2-year statute of limitations and outside the extended window provided by R.C. § 2305.19, commonly referred to as Ohio’s Saving Statute.ⁱⁱ Under § 2305.19, a plaintiff is given additional time to “refile a dismissed claim that would otherwise be time-barred” as long as the prior dismissal was not on the merits. The time period for refiling under § 2305.19 is “one of two dates: ‘either the time left in the limitations period, or one year from the date of the prior dismissal.’”ⁱⁱⁱ

Rector opposed summary judgment on the grounds that “his second filing of the complaint did not invoke R.C. 2305.19 because he filed the [second] action within the original statute of limitations [period].” Both the lower court and the appellate court disagreed with Rector explaining that there was no distinction between cases dismissed before expiration of the limitations period versus cases dismissed after the limitations period. The Eighth District explained that “[i]n any action that has been dismissed…refiling of the claims necessar[il]y occurs under R.C. 2305.19” and the statute can only be used once to refile a case.^iv

The Court concluded that since Rector dismissed his original action on February 7, 2018, he had the later of February 8, 2018 (under the statute of limitations), or February 7, 2019 (under the Saving Statute) to refile his claim to avoid it being time-barred.^v Either way, Rector was only allowed to rely on the Saving Statute to refile his claim once. Since Rector filed his claim for the third time in August 2019 it was both untimely and improper under R.C. 2305.19. The Eighth District affirmed summary judgment in Rector’s favor on these grounds.

The holding of this case can be generally applied to all types of lawsuits since dismissal was based wholly on procedural grounds. The take-away here is that when a case is dismissed it is imperative to note the applicable statute of limitations period, taking into account the extended filing window available under the Savings Statute. Once the alternative filing deadlines are determined, the file notes should clearly reflect only one subsequent filing will be permitted under R.C. 2305.19.